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A Treaty between the Government of Canada and the Government of the United Kingdom of Great Britain and Northern Ireland on Mutual Assistance in Criminal Matters (Drug Trafficking) [1990] CATSer 17 (4 August 1990)

E101632 - CTS 1990 No. 16

A TREATY BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ON MUTUAL ASSISTANCE IN CRIMINALS MATTERS (DRUG TRAFFICKING)

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

DESIRING to provide mutual assistance in the investigation, prosecution and suppression of crime, in particular drug trafficking, and the recovery of the proceeds of drug trafficking;

HAVE AGREED AS FOLLOWS:

ARTICLE I

Definitions

For the purposes of this Treaty,

(a) "a drug or narcotic" means a substance specified in the Schedules to the Single Convention on Narcotic Drugs (1961) as amended by the 1972 Protocol, in the Convention on Psychotropic Substances (1971), or in any other international agreement binding on both Parties, or in Schedule 2 to the Misuse of Drugs Act 1971 for the United Kingdom as amended from time to time, or the Food and Drugs Act and the Narcotic Control Act as amended from time to time for Canada;

(b) "drug trafficking" means engaging or being concerned in the unlawful production, distribution, supply, possession for supply, transport, storage, import or export of a drug or a narcotic, whether in Canada, in the United Kingdom or elsewhere;

(c) "offence" means

(i) in relation to Canada, any offence created by a law of Parliament or any offence created by a legislature of a province relating to a category specified in the Annex to this Treaty;

(ii) in relation to the United Kingdom any offence against the law of the United Kingdom or a part of it that falls or would fall within the jurisdiction of its courts;

(d) "proceeds" means any property that is derived or realised directly or indirectly by any person from an offence or offences (including drug trafficking) or the value of any such property;

(e) "property" includes money and all kinds of moveable or immoveable and tangible or intangible property, and includes any interest in such property.

ARTICLE II

Scope of Application

(1) The Parties shall provide, in accordance with the provisions of this Treaty, mutual assistance in all matters relating to the investigation, prosecution and suppression of offences.

(2) At the time of entry into force of this Treaty, the scope of application of mutual assistance provided for in this Article, shall be restricted to matters relating to the investigation, prosecution and suppression of offences related to drug trafficking.

(3) Assistance shall include:

(a) exchanging information and objects;

(b) locating or identifying persons, objects and sites;

(c) serving documents;

(d) taking of evidence and obtaining of statements

(e) executing requests for searches and seizures;

(f) providing documents and records;

(g) measures to locate, restrain and forfeit the proceeds of crime; and

(h) facilitating the appearance of witnesses or the assistance of persons in investigations.

(4) The provisions of this Treaty shall not give rise to a right on the part of a private party to obtain or exclude any evidence or to impede the execution of a request.

ARTICLE III

Extension of Scope of Assistance

The Parties undertake to consult each other as soon as practicable about providing assistance as defined in Article II in respect of offences other than offences related to drug trafficking as and when national legislation may permit. In the event of reaching agreement on changing the scope of this Treaty, the Parties shall so notify each other through the diplomatic channel.

ARTICLE IV

Other Assistance

The Parties may provide and continue to provide assistance pursuant to other agreements, arrangements or practices.

ARTICLE V

Central Authorities

The Parties shall each appoint a central authority to transmit and receive requests for the purpose of this Treaty. Unless the relevant Party designates another authority, the central authority for Canada shall be the Minister of Justice or officials designated by that Minister and the central authority for the United Kingdom shall be the Home Office, London.

ARTICLE VI

Requests

(1) Requests and responses thereto shall be transmitted between the central authorities.

(2) Requests shall be made in writing. In urgent circumstances, or where otherwise permitted by the Requested State, requests may be made orally but shall be confirmed in writing thereafter.

ARTICLE VII

Contents of Requests

(1) A request shall contain such information as the Requested State requires to execute the request, including:

(a) the name of the competent authority conducting the investigation or proceedings to which the request relates;

(b) a description of the nature of the investigation or proceedings including a statement setting out the relevant facts and laws;

(c) except in cases of requests for service of documents, a description of the essential acts or omissions or matters alleged or sought to be ascertained;

(d) the purpose for which the request is made and the nature of the assistance sought;

(e) details of any particular procedure or requirement that the Requesting State wishes to be followed;

(f) specification of any time limit within which compliance with the request is desired; and

(g) any special requirement for confidentiality and the reasons therefor.

(2) Requests for assistance may also, to the extent necessary, contain the following information:

(a) the identity, nationality and location of the person or persons who are the subject of the investigation or proceedings;

(b) a statement as to whether sworn or affirmed evidence or statements are required;

(c) a description of any information, statements or evidence sought;

(d) a description of any documents, records or articles of evidence to be produced as well as a description of the appropriate person to be asked to produce them and, to the extent not otherwise provided for, the form in which they should be reproduced and authenticated;

(e) a description of any property to which measures of restraint or confiscation are to be applied, including so far as possible the location of the property and its relationship to the person subject to the investigation or proceedings; and

(f) information as to the allowances and expenses to which a person appearing in the Requesting State shall be entitled.

(3) The Requesting State shall supply such additional information as the Requested State considers necessary to enable the request to be fulfilled.

ARTICLE VIII

Refusal or Postponement of Assistance

(1) Assistance may be refused when, in the opinion of the Requested State, the execution of the request would seriously impair its sovereignty, national security or other essential public interests, or for any reason related to its domestic law.

(2) Assistance may be refused if:

(a) the request relates to an offence where the acts or omissions alleged to constitute that offence would not, if they had taken place within the jurisdiction of the Requested State, constitute an offence; or

(b) provision of the assistance sought could prejudice an investigation or proceeding in the Requested State, prejudice the safety of any person or impose an excessive burden on the resources of that State.

(3) The Requested State may postpone assistance if execution of the request would interfere with an ongoing investigation or proceeding in the Requested State.

(4) Before denying or postponing assistance pursuant to this Article, the Requested State shall, through its central authority

(a) promptly inform the Requesting State of the reasons for considering denial or postponement; and

(b) consult with the Requesting State to determine whether assistance may be given subject to such terms and conditions as the Requested State deems necessary.

(5) If the Requesting State accepts assistance subject to the terms and conditions referred to in paragraph (4) (b) of this Article, it shall comply with such terms and conditions.

ARTICLE IX

Execution of Requests

(1) The central authority of the Requested State shall take whatever steps it considers necessary to secure the prompt execution of a request.

(2) A request shall be executed in so far as permitted by the law of the Requested State and in so far as possible in accordance with any specific requirements stated in the request.

(3) The Requesting State shall promptly inform the Requested State of any circumstances which may affect the request or its execution or which may make it inappropriate to proceed with giving effect to it.

(4) Where required by the Requested State, the Requesting State, after the completion of the proceedings, shall return to the Requested State material provided by the Requested State in fulfillment of the request.

ARTICLE X

Protecting Confidentiality and Restricting Use of Evidence and Information

(1) The Requested State shall to any extent requested keep confidential a request, its contents, supporting documents and any action taken pursuant to the request, except to the extent necessary to execute it, or where the disclosure is specifically authorized by the Requesting State in accordance with any terms and conditions it may specify.

(2) If the request cannot be executed without breaching confidentiality requirements stated in the request, the Requested State shall so inform the Requesting State which shall then determine the extent to which it wishes the request to be executed.

(3) The Requested State may require, after consultation with the Requesting State, that information or evidence furnished be kept confidential or be disclosed or used only subject to terms and conditions it may specify.

(4) The Requesting State shall not use evidence or information obtained pursuant to a request, for purposes other than those stated in the request, without the prior consent of the Requested State.

(5) Information made public in the Requesting State in accordance with paragraph (4) of this Article may be used for any purpose.

ARTICLE XI

Taking of Evidence in the Requested State

(1) A request may be made for evidence to be taken in the Requested State.

(2) For the purposes of requests under this Article, the Requesting State may specify any particular questions to be put to a witness.

ARTICLE XII

Availability of Persons to Give Evidence or Assist Investigations in the Requested State

(1) A request may be made for assistance to facilitate

(a) the assistance of a person in an investigation, or

(b) the appearance of a person as a witness in proceedings,

in relation to an offence in the Requesting State, except where that person is the person charged in the proceedings.

(2) The Requested State shall request the person to assist in the investigation or to appear as a witness in proceedings and shall seek that person's consent thereto. That person shall be informed of any expenses and allowances payable.

ARTICLE XIII

Search and Seizure

(1) A request may be made for assistance to search for and to seize material in the Requested State.

(2) The Requested State shall provide such information as may be required by the Requesting State concerning, but not limited to, the identity, condition, integrity and continuity of possession of the documents, records or things seized and the circumstances of the seizure.

(3) The Requesting State shall observe any conditions agreed with the Requested State in relation to any seized documents, records or things which may be delivered to the Requesting State.

ARTICLE XIV

Service of Documents

(1) The Requested State may serve any document transmitted to it for the purpose of service.

(2) The Requesting State shall transmit a request for the service of a document pertaining to a response or appearance in the Requesting State within a reasonable time before the scheduled response or appearance.

(3) The Requested State shall return a proof of service in the manner required by the Requesting State.

ARTICLE XV

Government Documents and Records

(1) The Requested State shall provide copies of publicly available documents and records of government departments and agencies.

(2) The Requested State may provide copies of any document, record or information in the possession of a government department or agency, but not publicly available, to the same extent and under the same conditions as it would be available to its own law enforcement or judicial authorities.

ARTICLE XVI

Certification and Authentication

(1) Copies of documents and records provided under Article XIV or Article XV shall be certified or authenticated in the manner required by the Requesting State or in any manner agreed upon pursuant to Article XIX.

(2) No document or record otherwise admissible in evidence in the Requesting State, certified or authenticated under paragraph (1) of this Article, shall required further certification or authentication.

ARTICLE XVII

Proceeds of Crime

(1) Request may be made for assistance in connection with the recovery of proceeds of crime.

(2) A request may be made for assistance in the restraint of property for the purpose of ensuring that it is available to satisfy an order of a court for the recovery of proceeds.

(3) A request may be made for assistance in securing the confiscation of proceeds. Such assistance shall be given in accordance with the laws of the Requested State, by whatever means are appropriate. This may include giving effect to an order made by a court in the Requesting State and initiating or assisting in proceedings in relation to the proceeds to which the request relates.

(4) Proceeds confiscated pursuant to this Treaty shall be retained by the Requested State, unless otherwise mutually decided in a particular case.

(5) Where action has been taken in the Requested State pursuant to a request for assistance under paragraph (2) or (3) of this Article, and there is a representation in the Requested State by a person affected by that action, the Requested State shall inform the Requesting State as soon as possible and shall also in due course inform it of the outcome of that representation.

ARTICLE XVIII

Representation and Costs

(1) The Requested State shall make all necessary arrangements for the representation of the Requesting State in any proceedings arising out of a request for assistance and shall otherwise represent the interests of the Requesting State.

(2) The Requested State shall meet the cost of fulfilling the request for assistance except that the Requesting State shall bear the expenses associated with conveying any person to or from the territory of the Requested State, and any fees, allowances or expenses payable to that person while in the Requesting State pursuant to a request under Article XII.

(3) If during the execution of the request it becomes apparent that expenses of an extraordinary nature are required to fulfil a request, the Parties shall consult to determine the terms and conditions under which the execution of the request may continue.

ARTICLE XIX

Consultations

(1) The Parties shall consult promptly, at the request of either, concerning the interpretation and the application of this Treaty.

(2) The Parties may develop such practical measures as may be necessary to facilitate the implementation of this Treaty.

ARTICLE XX

Extraterritoriality

(1) Neither Party shall request any measure for the production of documents or information located in the territory of the other Party otherwise than under the Treaty or in accordance with Article IV.

(2) In any investigation or prosecution in which a national or resident of one Party is directed by the judicial process of a third country to undertake or refrain from any conduct in the territory of the other Party in a manner that conflicts with the laws or established policies of that other Party, the Parties shall consult with a view to identifying means to avoid or minimize such conflict that the Parties might pursue between themselves, or, either jointly or individually, with the third country concerned.

ARTICLE XXI

Territorial Application

This Treaty shall apply:

(a) in respect of requests from the Government of Canada,

(i) to England and Wales and Scotland;

(ii) upon notification made through the diplomatic channel by the United Kingdom to Canada, to Northern Ireland, the Channel Islands and the Isle of Man;

(iii) to any territory for the international relations of which the United Kingdom is responsible and to which this Treaty shall have been extended by agreement between the Parties; and

(b) in respect of requests from the Government of the United Kingdom, to Canada.

ARTICLE XXII

Entry into Force and Termination

(1) This Treaty shall enter into force one month after the date on which the Parties have notified each other in writing that their respective requirements for the entry into force of this Treaty have been complied with. This paragraph shall also apply to any notification under Article III.

(2) This Treaty shall apply to requests made pursuant to it whether or not the offences occurred prior to this Treaty entering into force.

(3) Either Party may terminate this Treaty by giving written notice to the other Party at any time. Termination shall become effective six months after receipt of such notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

DONE in duplicate, in the English and French languages, each language version being equally authentic, at Ottawa this 22^nd day of June, 1988.

Brian Mulroney

FOR THE GOVERNMENT OF CANADA

Margaret Thatcher

FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

ANNEX

The definition of offence includes offences created by the Legislature of a Province of Canada in the following categories:

(1) securities;

(2) wildlife protection;

(3) environmental protection and

(4) consumer protection.